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Quick Analysis

Copyright and the Trans-Pacific Partnership Agreement

The Trans-Pacific Partnership Agreement (“TPP”) is a free trade agreement currently being negotiated by the United States, Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam. Canada, Mexico, and Japan may also join the TPP. Excessive copyright rights and enforcement adversely affect that ability of creators to create content, the ability of technology companies to make innovative products, and that ability of users to use content in new ways.

Problems with the TPP Negotiation Process

The TPP needs transparency. The TPP countries have not released any texts or negotiating positions to the public. The only information the public has about the contents of the TPP intellectual property chapter is from a leaked draft US proposal from February 2011.

The TPP needs public input. The TPP intellectual property chapter isn’t limited to provisions on trade and tariffs—it would implement substantive provisions of copyright law, which affects users, technology companies, and creators. Despite this, the US hasn’t meaningfully tried to inform or engage the public. Only large companies—not public interest advocates—are allowed to view and influence the US’s negotiating positions.

Building Balanced Copyright in the TPP

It’s hard to know the full extent of the harms the TPP’s copyright provisions may pose to the public interest, because the public has been kept in the dark. Based on a US draft that leaked in February 2011, Public Knowledge can identify a number of proposals that would have adverse consequences for consumers and should be removed from the TPP or modified. The actual text of the TPP may be far worse, but it is impossible to know until the text is released to the public.

The TPP should not protect incidental copies. The TPP would provide copyright owners power over “buffer copies”—the small copies that computers need to make in the process of moving data around. With buffer copy protection, many more transactions would require a license from the copyright owner and many more uses would expose consumers to liability.

The TPP should not prohibit breaking digital locks for legal uses. The TPP would prevent users from breaking digital locks (known as DRM), even if users intend to make non-infringing uses of the protected work.

The TPP should not criminalize small-scale copyright infringement. The TPP could make downloading music a crime. Police could seize a computer as a device that aids this offense and send the end-user to jail for downloading. The TPP’s criminal rules go beyond US law and would impose similar rules on other countries.

The TPP should not kick people off the internet. The TPP would encourage ISPs to institute measures like “three strikes”—which kicks users off their internet connection after three infringement accusations—and deep packet inspection.

The TPP should enable robust limitations and exceptions to copyright. The TPP should establish that the purpose of copyright limitations and exceptions is to achieve a balance between the rights of copyright owners and users. The TPP should define certain limitations and exceptions with sufficient detail to provide guidance to countries, and also give countries the flexibility to craft, maintain, or amend their laws to enact other socially and politically beneficial limitations and exceptions.

This post was authored by Public Knowledge Staff Attorney Jodie Griffin. This is the fourth post in our series on how a US proposal for a copyright chapter in the Trans-Pacific Partnership Agreement (TPP) would hurt the rights of citizens in the 21st century. That proposal was leaked on the internet in February last year. […]

On Sunday, dozens of non-profits, companies, and members of the public gathered in Leesburg, VA, to speak out about the Trans-Pacific Partnership (TPP) during the ongoing 14th round of negotiations. Public Knowledge attended the events, stressing to the negotiators the importance of copyright limitations and exceptions, and explaining how the TPP can be fixed to […]

This is the third post in our our series on how a US proposal for a copyright chapter in the Trans Pacific Partnership Agreement (TPP) would hurt the rights of citizen’s in the 21st century. That proposal wasleaked on the Internet in February last year. For more details on the TPP, check out tppinfo.org. By reading […]

Why International IP Matters

International forums provide the perfect opportunity to increase the rights of copyright owners at the expense of the public because many of these forums often lack of transparency, the negotiations are obscure, and the debates are easily disregarded as "far away".

That is why, when seeking policy changes that would otherwise be unpopular domestically, well-financed industry players often turn to international forums. Once harmful provisions are codified in international rules, they are easier to adopt domestically, or if already adopted, harder to change domestically.

This phenomenon—using international negotiations to adopt provisions that cannot be adopted in the U.S.—is not new. The term of art used to describe it is “policy laundering.”

How the USTR’s attempts on limitations and exceptions are half hearted

Copyright limitations and exceptions can correct some of these imbalances between rights of owners and users of copyrighted works. That is why it was so significant when the US Trade Representative (USTR) recently announced that it would include provisions on limitations and exceptions within the TPP. Some of these provisions leaked recently. However, if what was leaked is the entirety of the US proposal, it does disappointingly little to protect users’ rights.

Well, since everyone but country negotiators and industry "advisors" have been kept in the dark, it's hard to say.
But Public Knowledge has been tracking international IP issues for a number of years and a draft text was leaked in February 2011, so we can make an educated guess about what might be in the TPP's IP chapter.
(The agreement also covers a vast range of other issues, including … Read More

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